Minister for Immigration & Multicultural Affairs v SBAA

REASONS FOR JUDGMENT WILCOX AND MARSHALL JJ: 1 This is an appeal by the Minister for Immigration and Multicultural Affairs against a decision of a judge of the Court (O'Loughlin J) granting judicial review of a decision of the Refugee Review Tribunal. Both the decision of the Tribunal and the respondent's application for judicial review were made before 2 October 2001. Consequently, the review provisions relevant to this case are those in force before that day. Background 2 The respondent, who has been assigned the pseudonym "SBAA", claimed to be a national of Afghanistan, a Shi'a Muslim and, ethnically, a Hazara. He said his mother tongue was Dari, a language spoken in central Afghanistan, but also in parts of Pakistan and Iran. 3 Although SBAA is the respondent to this appeal, it will facilitate reference to the Tribunal's reasons for decision if we refer to him, throughout, as "the applicant". He was, of course, the applicant before the Tribunal and also before O'Loughlin J. The Tribunal's decision 4 It appears that, shortly after his application for a protection visa, the Department of Immigration and Multicultural Affairs arranged a linguistic analysis of the applicant's speech. Apparently on the basis of the linguist's report, the Tribunal found he "speaks Dari with a Hazaraji accent and it is clearly his mother tongue". The Tribunal said it also "accepts that the applicant is a Shi'a Muslim as are most Hazaras". 5 The Tribunal further found, on the basis of "country information", that "the Taliban have massacred several thousand Hazaras". The Tribunal said a "wide range of UN sources and international and Afghan NGOs have all taken the view that Hazaras are a vulnerable group". Accordingly, the Tribunal accepted the submission of the applicant's adviser "that Hazaras in Afghanistan are particular targets of discriminatory action by the Taliban ranging from 'disappearances', arrests and detention, and other intimidatory treatment. Indeed, it could be argued that the Hazara have been the victims of 'ethnic cleansing' by the Taliban". 6 Notwithstanding these findings, the Tribunal rejected the applicant's claim for a protection visa. The Tribunal was not satisfied the applicant is an Afghan national. Therefore it was not satisfied he had a well-founded fear of persecution by the Taliban. In its reasons for decision, the Tribunal said: "… there are a number of aspects of the applicant's evidence that lead the Tribunal to the conclusion that the applicant is not being truthful. On the basis of the applicant's own evidence, the Tribunal cannot be satisfied that the applicant is who he says he is. He has not provided credible information fully and frankly that enables the Tribunal to make findings about who the applicant is. Nor is the Tribunal satisfied as to his general credibility. On the evidence made available by the applicant the Tribunal cannot be satisfied that the applicant was born in Afghanistan or that he is a national of Afghanistan." 7 It appears from the Tribunal's reasons that, during the course of the hearing, the Tribunal member put questions to the applicant that were designed to test his knowledge of Afghanistan. He was asked what was a Taskira. He replied that it was a "small notebook … it was an ID notebook". He said his father had one; he did not. He said his father was supposed to get one for him but "there was fighting and there was no means of getting one". The Tribunal member asked what was on the front cover. The applicant said "there was a picture of a liberation bird and a number underneath that". The Tribunal member asked other questions about the form of a Taskira and received answers. At no point, in her reasons for decision, did the Tribunal member indicate which, in her view, of these answers was incorrect, or what was the correct answer. 8 The Tribunal member asked the applicant questions about the district from which he claimed to come. He gave answers. The process was described this way in the Tribunal's reasons: "The Tribunal asked the applicant the names of the main town in Jaghuri? Sang-e Mashar. The Tribunal asked the applicant how many houses there are in this town? The applicant stated that there are shops in the bazaar and there are many small villages around. The applicant stated that he was not familiar with the houses. The applicant stated that he used to go to the bazaar. The Tribunal asked the applicant how many shops there are in the bazaar? The applicant stated that he could not say how many there are about 600-800. The Tribunal asked the applicant what is the name of the large mountain near the bazaar. The applicant named a number of mountains - including Koh Oliad, Nala, Qadar, Mandak, Chalmandak. The Tribunal stated that there is one particular mountain near the Bazaar and asked the applicant to name that mountain. The applicant stated that he is illiterate and it is not his job to know these mountains. The Tribunal pointed out to the applicant that he has lived all his life in the area and has visited the bazaar frequently and that he many [sic] be illiterate but he is not stupid. The applicant stated that he could not say which mountain is close. The Tribunal asked the applicant the name of the main river in Jaghuri? The applicant stated that it is called Sang-e Mashar River." 9 Once again, at no point did the Tribunal member indicate which of the applicant's answers was wrong, or what was the correct answer. The Tribunal dealt with the questions and answers in this broad way: "The applicant was asked a number and range of questions about Afghanistan, and the area from which he claims to originate. The applicant could not accurately describe the national identity document, the Tazkira [sic], nor could he correctly identify specific geographical landmarks from the area in which he claimed to have lived all his life [for example the name of the river running through the area]. The applicant was vague in his answers to the Tribunal when asked general questions about Afghanistan." 10 The Tribunal member closely questioned the applicant about details of his claims. In her reasons for decision, she identified some alleged inconsistencies. In his initial interview by a Departmental officer, he was recorded as saying that he "had never worked", whereas he told the Tribunal member that, before the Taliban came, he "used to travel to Sang-e Mashar to buy goods". There was apparently also a discrepancy in the applicant's statements about the number of times the Taliban came to his house. There were other more minor matters. 11 The Tribunal concluded its statement of findings in this way: "The Tribunal must determine whether it can be satisfied that the applicant is a national of Afghanistan. In the light of: . The applicant's lack of knowledge about Afghanistan generally . The applicant's lack of knowledge about his area in particular, . The numerous and conspicuous inconsistencies in the applicant's claims and evidence . The raising of new claims [to the Tribunal] to rationalize inconsistencies; The Tribunal cannot be satisfied that the applicant is a national of Afghanistan. The only personal details before the Tribunal are provided by the applicant, asserting that he was born in Afghanistan. However because the applicant is not credible the Tribunal is not satisfied that these personal details are true. There is insufficient credible material before the Tribunal to determine where the applicant is from or of which other country he is a national. The Tribunal invited the applicant to respond in writing to the adverse information and issues raised above. Both the applicant and his adviser responded in writing. The Tribunal has given careful consideration to these responses, but cannot be satisfied that that [sic] they have clarified the significant and numerous contradictions and implausibilities in any meaningful way. Considering the inconsistencies in the applicant's claims and evidence, and the applicant's untruthfulness on essential elements of his claim, the Tribunal finds that the applicant has deliberately fabricated his claims. In light of the Tribunal's finding that the applicant has fabricated his claims and evidence, and there is no other material before the Tribunal on which it can be satisfied that he has a well founded fear of persecution for reasons of a Convention ground, it cannot be satisfied that he is a refugee within the meaning of the Convention." (Original emphasis) 12 The Tribunal then set out its formal conclusion: "Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa." The proceeding before O'Loughlin J 13 The applicant applied to this Court for review of the Tribunal's decision, pursuant to Part 8 of the Migration Act 1958. The application filed on behalf of the applicant was in handwriting. It was apparently prepared without legal assistance. It failed to identify any ground of review falling within s 476 of the Migration Act, as it then stood. The application was supported by an affidavit sworn by the applicant that challenged the factual findings and logic of the Tribunal, but also failed to identify an available ground of review. 14 The application came before O'Loughlin J on 5 November 2001. The applicant appeared in person, apparently by video-link to the Woomera Detention Centre. 15 His Honour gave judgment seven days later. He upheld the application for judicial review and remitted the matter to the Tribunal, differently constituted, "to review the application for a protection visa according to law". 16 In his reasons for judgment, O'Loughlin J summarised the facts. In the course of doing so, he referred to the linguistic report referred to in para 4 above. His Honour reproduced an extract from the report that the Tribunal had quoted in its reasons for decision. The relevant passage in the Tribunal's reasons was as follows: "On 23 May 2001 a language analysis was made on the applicant. In this report it is stated that: 'The person speaks Dari was a Hazaragi dialect. This dialect is spoken in central parts of Afghanistan, in Baluchistan in Pakistan and in southeastern parts of Iran. Hazagari is obviously his mother tongue and he uses typical local words … He seems to have a good religious and cultural knowledge but he does not know anything about the geographical location of Afghanistan, not even of the area he was living in …' The applicant was invited to comment on this information. The applicant responded on 8 June 2001 stating that: 'I have never travelled outside Afghanistan and have always lived in Kondah, Jaghuri district. I have a good knowledge of my area. I have not travelled outside my village but I have a good knowledge on my area and the surrounding areas. I dispute the allegation that I know nothing about the geographical location of Afghanistan, not even the area I was living in and can answer any questions asked'." 17 O'Loughlin J commented: "It is difficult to know what weight should have been attached to that report. Its author was not identified nor were the qualifications of the author. Presumably he or she had expertise in the Dari language and the Hazaragi dialect but what expertise did the author possess with respect to the geography of Pakistan? [sic: Afghanistan] None is apparent from the tribunal's reasons yet the asserted inability of the applicant in this report to discuss with clarity certain matters of geography were held against him by the Tribunal." 18 O'Loughlin J emphasised the importance of "the impression that the Tribunal forms when an applicant gives his or her evidence". He noted the Tribunal member had "referred to and acknowledged the many authorities in this Court which have counselled against taking too hard a line because of the inconsistencies in the stances that applicants for refugee status tell to the interviewing authorities". His Honour went on (at paras 12-17): "Yet, even so, I feel that the Tribunal has fallen into error. The inconsistencies, with one exception that dealt with the number of times that the Taliban visited the applicant's village, were peripheral matters. The principal matters that were to be considered by the Tribunal included the identification of the applicant's nationality and there was no inconsistency there. Next, the Tribunal had to consider whether, because of one of the five convention reasons, there was a real chance of persecution. There was no inconsistency there. By implication, the Tribunal accepted that if he were an Afghani, his Hazara Shi'a background could justify a finding in his favour. The areas of inconsistency could in many cases just as easily have been called areas of misunderstanding - particularly having regard to the environment in which the applicant was questioned and the need for translators and interpreters. For example, on one occasion he said that he used to travel to Sang-e-Mashur to buy goods, having elsewhere said that he had never worked. Bearing in mind that his father was a trader in the Bazaar and that he accompanied his father to the Bazaar, this subject should have been further explored before concluding that there was an inconsistency or a contradiction. As the Tribunal pointed out, it relied on the totality of the inconsistencies in concluding that the applicant had 'fabricated his claim for refugee status'. It added that it could not be satisfied 'that the applicant has ever been pursued by the Taliban or that his brother was killed by the Taliban'. However, in my opinion these conclusions were influenced impermissibly by relying upon an assertion in a 'language analysis report' that the applicant had an inadequate geographical knowledge and by placing undue emphasis on those inconsistencies that were of peripheral importance only. A more important subject of inconsistency is the attendance on the applicant by members of the Taliban. The Tribunal in its reasons said: 'In his entry interview the applicant stated that the Taliban came to his home on two occasions. In his statement to the Department the applicant claimed that they came on one occasion while at his Tribunal hearing the applicant claimed that they came to the village - including his house - at lease [sic] once a week and sometimes more often.' Having regard to the fact that the attitude of the Taliban is the basic cause for the applicant's asserted fear of persecution, one would normally expect a pattern of consistency to emerge from the applicant's interviews when discussing the activities of the Taliban so far as they might affect him. But, at the same time, it must be remembered that the applicant was a stranger in a strange land, striving to convince the authorities that he should be permitted to stay here, perhaps embellishing his story or changing it in the hope that it may persuade the authorities to favour him." 19 O'Loughlin J noted the limited review power of the Court. He accepted a submission that "even if the decision contained unreasonable or illogical conclusions, this would not, of itself, be enough to demonstrate an error of law in the Tribunal's decision-making process reviewable under s 476 of the Act". However he noted para [82] of the decision of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1 viz: "What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." 20 O'Loughlin J concluded at para 23: "I have come to the conclusion that the Tribunal may have concentrated too much on inconsistencies in what I have called peripheral issues, and, in doing so, has identified wrong issues." 21 His Honour then made the orders mentioned above. The arguments on appeal 22 The Minister's notice of appeal cited only one ground: "The Learned Judge made an error of law in holding that the Refugee Review Tribunal ('RRT') had fallen into jurisdictional error (paragraphs 12 to 17 and 23 of the reasons for judgment)." 23 Particulars were supplied: " 2.1 The RRT's approach to and the reasons for the weight it attributed to and the use it made of the language analysis report ('the report') was a matter for it. The RRT's findings regarding the report was open to it on the evidence before it (paragraph 10 of the Judgment). There is no error of principle in the RRT's approach to this issue. 2.2 As to what weight the RRT placed on matters before it, 'peripheral' or otherwise was a matter for it (paragraphs 12 to 17 and 23 of the Judgment). The Learned Judge's findings in respect of the above two issues is wrong in principle, and trespasses into a merits review of the RRT decision." 24 At the hearing of the appeal, Ms Sashi Maharaj of counsel appeared on behalf of the Minister. Mr N W Morcombe QC and Mr J S Roder appeared (apparently on a pro bono basis) on behalf of the applicant. Ms Maharaj developed the matters stated in her client's notice of appeal by contending that O'Loughlin J's concerns about the Tribunal's decision, properly scrutinised, related to "the weight or the use to which the Tribunal put the language analysis report" and "the Tribunal's characterisation of certain evidence as inconsistencies going to the issue of credit, when his Honour would have forgiven them as areas of understandable misunderstanding". However, Ms Maharaj argued, neither of these areas constituted an error of law within the meaning of s 476 of the Act; each "falls squarely within the classic area of merits review, an area forbidden to the Court sitting on judicial review". She referred to the remarks of Brennan J in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36: "The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall C.J. in Marbury v Madison (1803) 5 US 87 at p 111: 'It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 25 Ms Maharaj contended the findings made by the Tribunal were open to it on the evidence; weight was for the Tribunal to determine. She added that, even if any of the Tribunal's findings of fact was wrong, this would not constitute an error of law under s 476. She cited the words of Kenny J in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; 93 FCR 220 at para 186 and statements in later cases. 26 Ms Maharaj concluded: "It is respectfully submitted that a proper application of the correct legal principles on the issue of the function of a court sitting in judicial review as opposed to an exercise in merits review in the context of s 476, leads to the conclusion that the learned judge at first instance erred in law." 27 Counsel for the applicant did not dispute Ms Maharaj's propositions of law. However, they supported the conclusions of O'Loughlin J. They suggested his Honour was justified in considering that the Tribunal's failings extended beyond factual errors; the Tribunal made a jurisdictional error by identifying the wrong issue and failed to refer to the evidence on which it based its findings concerning the nationality of the applicant. They pointed out that the Tribunal failed to make findings of fact concerning the applicant's answers to the questions put to him about the Taskira and Afghanistan geography. The Tribunal apparently considered those answers inaccurate, but it did not specify the inaccuracies. 28 Counsel pointed out that s 430(1) of the Act requires the Tribunal, where it makes a decision on a review, to prepare a written statement that, amongst other things: "(c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 29 Counsel submitted the Tribunal did not do this, in relation to the questions about the Taskira and Afghanistan geography. They argued this gave rise to a ground of review under s 476(1)(a) of the Act: "procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed". 30 Counsel for the applicant said the Tribunal erred because it "treated credibility as the be-all and end-all of the matters at issue". They pointed out the applicant was accepted by the Tribunal as a person of Hazara ethnicity and Shi'a religion. The Tribunal also accepted that Afghanis who possessed these characteristics were at significant risk of persecution if returned to their country of nationality. The dominant issue, therefore, was whether the applicant was an Afghani (as he claimed) or a national of some other country; on the basis that he spoke Dari with a Hazaragi dialect, presumably Pakistan or Iran. Counsel submitted that the task of the Tribunal was to concentrate on this issue, not to be distracted by concerns about credibility on minor matters such as whether regularly going to the bazaar constituted "work" and the number of times the Taliban had visited the applicant's house. 31 Counsel drew attention to something not mentioned anywhere in the Tribunal's reasons for decision. The language analysis report, upon parts of which the Tribunal placed reliance, commenced with the following statement, under the heading "Expert opinion": "The speech on the tape is Dari. The person speaking has obviously his language background in Afghanistan." 32 Following that statement, and under the heading "Explanation", the Tribunal made the comment about the applicant speaking Dari with a Hazaragi dialect, and gave information about where else this dialect is spoken. After citing some examples, the report concluded: "He seems to have good religious and cultural knowledge but he does not know anything about the geographical location of Afghanistan, not even of the area he was living in. There are no linguistic features on this recording which indicate that the person speaking has his language background in any other country than Afghanistan. The analyst who has performed this analysis originates from Afghanistan." 33 The first paragraph of the extract set out in the preceding paragraph was quoted by the Tribunal in its reasons for decision: see para 16 above. However, the second paragraph was not. 34 Counsel drew attention to the statement in the Tribunal's reasons for decision (quoted at para 11 above): "The only personal details before the Tribunal are provided by the applicant, asserting that he was born in Afghanistan". Counsel argued this statement was incorrect: the Tribunal had uncontradicted evidence from its own selected linguistic expert that: (i) the applicant "has obviously his language background in Afghanistan"; and (ii) there are "no linguistic features on this recording which indicate that the person speaking has his language background in any other country than Afghanistan." 35 Counsel argued these conclusions virtually compelled a finding in the applicant's favour on the critical issue, regardless of any inconsistencies in the details of his various accounts or doubts about his credibility. They said the fact that the Tribunal did not even refer to this evidence shows it failed to ask itself the correct question in addressing the issues it had to determine. Conclusions 36 This Court must always be alive to the difference between judicial review and merits review. That difference was explained by Brennan J in Quin. His explanation was adopted by McHugh, Gummow and Hayne JJ, in relation to the Migration Act, in Yusuf at para 73. As Ms Maharaj submitted, it is not open to the Court to set aside the Tribunal's decision simply because it has concerns about the Tribunal's factual findings; it would not be sufficient even if the Court were positively satisfied they were wrong. 37 Counsel for the applicant criticised the failure of the Tribunal to comply with the requirements of s 430(1)(c), in relation to the questions about the Taskira and the geography of Afghanistan. The Tribunal must have regarded the applicant's knowledge of these facts as a significant matter, otherwise it would not have put the questions. But it failed to set out its findings about them. It did not say to what extent the answers were incorrect. Neither did it refer to the evidence or other material by virtue of which it had concluded the applicant was wrong. As it seems to us, it is arguable that s 430(1)(c) and (d) required these matters to be disclosed. 38 In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 456; 98 FCR 469 a Full Court of this Court (Black CJ, Sundberg, Katz and Hely JJ; Kiefel J dissenting) held that a failure to comply with a requirement of s 430 falls within s 476(1)(a). That decision was overruled by the High Court in Yusuf. A failure by the Tribunal to comply with s 430, does not, in itself, constitute a ground of review under the old s 476. 39 However, members of the High Court pointed out, in Yusuf, that a failure by the Tribunal to comply with s 430 may have other consequences. At para 5, Gleeson CJ said: "The Tribunal is required, in setting out its reasons for decision, to set out 'the findings on any material questions of fact'. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material." 40 Gaudron J (at para 51) held that the failure of the Tribunal to make findings with respect to one aspect of Ms Yusuf's claims "has the consequences that the Tribunal lacked jurisdiction to affirm the earlier decision of the Minister's delegate and, also, that its decision was not authorised by the Act". 41 McHugh, Gummow and Hayne JJ said (at para 75): "If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well‑founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past). It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well‑established limits. If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations."